UNITED STATES v. MALDONADO (2019)

Perfecto Maldonado appeals the within-guidelines sentence of 21 months that he received for illegal reentry in violation of 8 U.S.C. § 1326. He challenges that sentence as unconstitutional because it exceeds the statutory maxi-mum in § 1326(a) and because the conviction used to increase the sentence under § 1326(b)(2) was not alleged in the indictment. Maldonado concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 239, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). E.g., United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007). He seeks to preserve the issue for possible Supreme Court review.

The government moves for summary affirmance or, alternatively, for an extension of time to file its brief. Because the sole issue presented is foreclosed, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, the government’s motion for summary affirmance is GRANTED, its alternative motion for an extension of time to file a brief is DENIED, and the judgment is AFFIRMED.

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PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.